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Wednesday, July 18, 2018

Clopton on universal injunctions

At the Take Care Blog, Zachary Clopton (Cornell) argues that history, structure, and precedent "do not provide a once-size-fits-all answer" to the question of the propriety of universal injunction. Clopton's basic argument is that other doctrines, notably nonmutual issue preclusion and full faith and credit (and, I would add, precedent), protect non-parties. There is thus no blanket reason not to allow injunctions to do the same work, especially since all are grounded in policy concerns.

The difference is how hard we make non-parties work to gain those protections. Precedent and preclusion requires affirmative steps by the new party--file her own lawsuit and ask the second court to make use of the prior judgment or precedent. A universal injunction requires the non-party to do nothing more than request the first court to enforce the injunction and, perhaps, to hold the government in contempt. For reasons linked to Article III and the scope of constitutional claims, I favor requiring those non-parties to take those extra steps.

Comments

The example you use--tax returns--illustrates the very point. Windsor did not involve an injunction, it was an action in Tax Court by Windsor for a refund. And the judgment in the case was that the US owed her around $ 300k. The judgment affected no one else. And where tax laws (such as DOMA) are concerned, no injunction could be sought, because the Tax Injunction Act requires taxpayers to pay first, then seek a refund for themselves.

Posted by: Howard Wasserman | Jul 19, 2018 2:00:33 PM

I don't know what the right answer to this question is. But I am sure glad that I (along with the 500,000+ other same-sex married couples in this country) didn't have to file my own lawsuit just to get the government to accept my joint tax return with my same-sex spouse. (I imagine a universal injunction wasn't actually at play in the Windsor case, but had the Obama administration insisted the ruling applied only to Edith Windsor, this is the scenario we would have found ourselves in.) It's just hard for me to see how making it harder to access rights that we all agree we have as anything other than a bad thing, especially given how difficult it is to access rights through the courts in the first place.

Posted by: J | Jul 19, 2018 12:41:36 PM

The respectable author of the related article , is claiming indeed , that :

As I said above, whether a nationwide injunction should issue in a particular case is a difficult question. Part of what makes it difficult is that arguments about history, precedent, and structure do not provide a once-size-fits-all answer.

End of quotation :

But this is not at all , a difficult question . For this is a wrong methodology that he has chosen . One should not , go wild simply , and digging horizontally all around for justifications or not . For It would be sufficient , to prove , one case or kind of cases , where Universal injunction is absolutely warranted , and it is sufficient indeed . For then , one must argue , that it is , at least , structurally valid. So let's pick up the challenge :

Suppose that the president , decides to pardon , all convicted persons for certain kind of offense , but which is , a state offense , not federal offense . Now , according to the constitution , he can't pardon for state offenses , but federal . Now , how would it matter , who are further the litigants and their claims . It must be blocked at once . Why ?? because , there is no way , the president can do it . It is legally , and constitutionally so impaired and flawed , that further proceedings , are useless , unconstitutional , and eroding public trust . Is it a case for such injunction ?? Absolutely so !! A federal district judge must issue here , Universal injunction .

So , that is what happens in reality :

In county of Santa Clara V. Donald Trump ( northern district of California ) I quote ( p.4) :

The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves. Because the Executive Order violates the separation of powers doctrine and deprives the Counties of their Tenth and Fifth Amendment rights, I GRANT the Counties’ motions for summary judgment and permanently enjoin the defunding and enforcement provisions of Section 9(a).

And more :

" The federal government argues that the Executive order does not change the law , but merely directs the Attorney General and Secretary to enforce existing law ..............But in reality , the defunding provision instructs the Attorney General and the Secretary to do something that only the Congress has the authority to do - place new conditions on federal funds.... "

End of quotation :

So, only the congress can do it !! Not the president !! It is constitutionally so . How would it matter , who are further the litigants then ? This is a federal court , reigning on federal issues , all over the federal system , and anyway , nationwide as such. This is structurally so !!